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While we usually post about “hot off the press” federal decisions in employment-related class action litigation, today we highlight litigation that is still simmering in the pleadings stage. In EEOC v. United Parcel Service Inc., No. 09-CV-05291 (N.D. Ill. Sept. 28, 2011), Judge Robert M. Dow Jr. of the U.S. District Court for the Northern District of Illinois partially dismissed the EEOC’s claim that the Defendant, UPS, systematically discriminated against disabled employees in violation of the Americans With Disabilities Act (“ADA”). The EEOC’s case is hanging by a thread, but the Commission is still holding on. In a last resort effort, yesterday the EEOC field a motion seeking permission for an interlocutory appeal on a key issue underlying EEOC pattern or practice litigation that Judge Dow decided adversely to the Commission - the extent to which the EEOC may pursue claims on behalf of unknown claimants (often called “class members” by judges and litigants, even though EEOC pattern or practice cases are not governed by Rule 23 and are not class actions) allegedly injured by an employer’s policy.

In most cases, an appeal is not made until a final ruling on all of the issues - i.e., after the judge grants a motion to dismiss kicking the case out entirely or grants a motion for summary judgment. But, in rare circumstances, a judge may grant permission for a party to seek an interlocutory appeal, allowing the litigant to ask the court of appeals to review the narrow issue at hand. Courts grant interlocutory appeals sparingly ? only in extraordinary circumstances that would prevent the case from being properly decided if the appeal was not heard. In fact, in 2000, Judge Posner of Seventh Circuit noted: “Since the beginning of 1999, this court has received 31 petitions for interlocutory appeal under . . . § 1292(b) and has granted only six of them.” See Ahrenholz v. Board of Trustees of University of Illinois, 219 F.3d 674, 675 (7th Cir. 2000). So the EEOC’s motion is the proverbial “Hail Mary” pass.

Background Of The Case

In August, 2009, the EEOC brought suit against UPS alleging that it unlawfully terminated its employees after they spent a year on disability leave, in violation of the ADA. The EEOC only named two employees that UPS allegedly discriminated against - Trudi Momsen and Mavis Luvert. Yet, the EEOC also alleged that UPS systemically discriminated against “hundreds” of employees nationwide. In its Complaint, and subsequent legal papers, however, the “hundreds of employees” remained unnamed. UPS moved to dismiss the EEOC’s claims for the unnamed claimants and Judge Dow granted in part and denied in part UPS’ motion to dismiss. Specifically, Judge Dow dismissed the EEOC’s claims asserted on behalf of the unidentified class members, holding that the EEOC lacked sufficient facts to plead a case for such employees, and only permitted the case to proceed on behalf of Plaintiffs Momsen and Luvert.

The EEOC’s Interlocutory Appeal

The EEOC sought leave to appeal Judge Dow’s ruling and this week, it submitted a motion requesting that the Court certify its request for review by the Seventh Circuit. The EEOC grounded its interlocutory request on the fact that “whether the EEOC can challenge the application of a common policy under the ADA without identifying all of the victims in its Complaint is a controlling legal question of first impression[.]” Id. at 1. The EEOC noted that “there are relatively few ADA cases that discuss the pleading standard post-Twombly and Iqbal, and there are no post-Twombly/Iqbal cases that require an ADA plaintiff alleging a common violation to state a prima facie case for each class member in order to survive a motion to dismiss.” Id. at 3 (emphasis in original). The EEOC also claimed that if the Court rejected the appeal, “the implications of this decision are so significant that . . . EEOC will be forced to take this case to trial in order to be able to appeal it. In this way, the parties are precluded from the possibility of settlement - the most common and effective method for resolving litigation short of trial.” Id. at 4-5.

Implications For Employers

Will Judge Dow permit the EEOC’s interlocutory appeal? Either way, Judge Dow’s decision is important because it will impact the few decisions post Bell Atlantic Corp. v. Twombly, 550 U.S. 662 (2009) and Ashcroft v. Iqbal, 556 U.S. 662 (2009),that discuss the impact of heightened pleading standards on ADA-related cases. We will continue to monitor the proceedings in this significant case, so stay tuned.